United States District Court, D. Nebraska
MEMORANDUM AND ORDER
matter is before the Court on the Findings and Recommendation
(F&R), ECF No. 55, issued by Magistrate Judge Susan M.
Bazis. The Magistrate Judge recommended that the Motions to
Suppress filed by the Defendants Kendall Miller, ECF No. 27,
and Lawrence Henderson, ECF No. 34, be denied. Both
Defendants filed Objections to the F&R, ECF Nos. 56, 58,
as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR
59.2(a). The Government responded to the Objection, ECF No.
60. For the reasons set forth below, the F&R will be
adopted, and the Motion to Suppress will be denied.
are charged with possession with intent to distribute
methamphetamine, cocaine, and marijuana. Indictment, ECF No.
1. Defendants seek to suppress any evidence obtained by law
enforcement on August 28, 2018, asserting that Nebraska State
Patrol Trooper Samuel Mortensen lacked probable cause to stop
Defendants' vehicle, impermissibly interrogated
Defendants, extended the traffic stop in order to conduct a
dog sniff, and lacked probable cause to search
Defendants' vehicle. Neither Defendant directly objected
to the Magistrate Judge's factual findings. Having
reviewed the record, the Court adopts those findings and
provides the following by way of summary:
August 28, 2018, Trooper Mortensen was traveling west on I-80
in Hall County, Nebraska, when he observed a white semi
pulling a white trailer traveling east. Trooper Mortensen
observed two individuals in the semi which, in his
experience, is uncommon. As the semi passed, Trooper
Mortensen observed that trailer did not have a license plate,
so he turned his cruiser around and initiated a traffic stop.
approached the semi, Trooper Mortensen observed that the rear
of the trailer displayed the company name, DOT number and MC
number. Trooper Mortensen testified that these markings are
uncommon because they are not required by the Federal Motor
Carrier Regulations and would have been an added expense for
the company to put that marking on the trailer. Trooper
Mortensen also noticed a temporary tag where the license
plate should have been and fresh or new paint around the rear
of the trailer and around the axles. This led Trooper
Mortensen to believe that the trailer was new or
was seated in the passenger's seat and Miller was in the
driver's seat. Trooper Mortensen advised Defendants of
the reason for the stop and asked to see the registration
documents for the semi as wells as Miller's driver's
license. As he made these requests, Trooper Mortensen noticed
several pine-tree-style air-fresheners throughout the cab of
the semi. Defendants produced the registration, lease
agreements, and insurance information. The documents revealed
that the purchase date of the trailer was August 23, 2018.
Mortensen informed Defendants he was going to perform a level
two inspection-a type of walk-around inspection of a
commercial vehicle. Trooper Mortensen testified that it is
his general practice to do a level 2 or 3 inspection whenever
he stops a commercial vehicle. After he completed the level 2
inspection, Trooper Mortensen told Defendants he was going to
prepare an inspection report, and asked Miller to accompany
him to his cruiser.
Miller exited the semi, Trooper Mortensen requested
Miller's electronic log book. The log book showed several
days of off-duty time prior to August 25, 2018, when the
drive-time began. He noted that there was a significant
amount of down time in the Salt Lake City, Utah, area.
Trooper Mortensen also noticed that there was a short amount
of on-duty driving time before there was off-duty time again,
and then it showed driving from Salt Lake City to the North
Trooper Mortensen examined Miller's log book, he asked
Henderson about their trip. Henderson told him that they were
coming from California. Henderson said they had dropped part
of a load in Salt Lake City and that they were headed to drop
the remainder of the load in Ohio. Henderson provided Trooper
Mortensen with his driver's license and offered to show
Trooper Mortensen what was in the trailer.
his conversation with Henderson, Trooper Mortensen returned
to his cruiser with Miller. In the cruiser, Trooper Mortensen
began to examine the paperwork and run background checks on
Defendants. Trooper Mortensen learned that Miller had a valid
commercial driver's license out of Ohio. He also learned
that Miller had a criminal history for assault and that
Henderson had a prior drug charge.
in the cruiser, Trooper Mortensen asked Miller for further
details about their trip. Miller told Trooper Mortensen that
they picked up the load in California, but he could not
recall exactly where, and said they were taking the load to
Columbus, Ohio. Miller told Trooper Mortensen that this was
his first trip for the company. Trooper Mortensen asked
Miller if they had taken a load to California, and Miller
said they had not. Trooper Mortensen asked how they arrived
in California, and Miller corrected himself and said that
they had taken a load to California with a different truck.
Trooper Mortensen thought this was significant because, in
his experience, it is not common practice to change trucks.
Trooper Mortensen further testified that during their
discussion, he thought he could smell the odor of burnt
marijuana on Miller. Trooper Mortenson stated that Miller
remained calm and relaxed and answered all questions.
his discussion with Miller, Trooper Mortensen left the
cruiser to return Henderson's license and again asked
Henderson about their travel plans. Henderson told Trooper
Mortensen that they had driven a different truck to
California with a different load, and then had changed
companies. Henderson explained that he did not have any prior
driving time on his log book because the other company that
he drove for had a different log book system.
Mortensen then returned to the cruiser to complete the
inspection report. He returned Miller's paperwork and
told Miller he was free to go. At that point, according to
Trooper Mortensen, the purpose of the traffic stop was
complete. As Miller was exiting the cruiser, Trooper
Mortensen asked Miller if there was anything illegal in the
semi and if he was still willing to consent to him looking
inside the trailer. Miller told Trooper Mortensen that he was
just the driver and he had to ask Henderson for consent to
search. Trooper Mortensen told Miller to wait in the cruiser
while he went to speak to Henderson. Trooper Mortensen
acknowledged that Miller was not free to leave at that point.
this time, Trooper Matt Adams arrived on the scene. As
Trooper Mortensen left the cruiser to speak to Henderson, he
asked Trooper Adams to talk to Miller to see if he could
smell marijuana. Trooper Mortensen then asked Henderson for
consent to search the semi and trailer. Trooper Mortensen
explained that he had several suspicions and, based on his
experience, the circumstances of the trailer and their
documents were consistent with a criminal enterprise.
acknowledged that the trailer was just picked up and was new,
but that he had gone coast to coast in the semi. Henderson
explained he was going back to California to get the license
plate and, since they had all their paperwork, he did not
understand why this was a concern. Henderson indicated he
wanted to head down the road. Henderson further stated that
he did not think there was probable cause to search the semi.
Trooper Mortensen admitted that he did not have probable
cause and that was why he was asking for consent to search.
At that point, Henderson gave Trooper Mortensen consent to
search the trailer, but not the cab of the semi.
Mortensen had Henderson exit the semi, requested a K-9
through dispatch, and then conducted a search of the trailer.
The search of did not uncover any contraband. After the
search, Trooper Mortensen informed Henderson that he was
going to prepare a receipt for the search. He also told
Henderson that a K-9 was going to come to double-check the
was still in the cruiser when Trooper Mortensen returned to
prepare the receipt. As he was completing the receipt,
Trooper Mortensen used the computer in his cruiser to see how
long it would be before the K-9 arrived. Once the receipt was
complete, Trooper Mortensen returned Miller's documents
and provided him with a copy of the receipt to sign. As
Trooper Mortensen was preparing to scan the signed receipt,
he noticed that the log book he examined belonged to
Henderson, not Miller. Trooper Mortensen requested
Miller's log book. Miller stated that he did not have one
and was operating under Henderson's book. Trooper
Mortensen testified that this constituted a false log and was